Amaya v. Bregman

• Decision Date: 16 December 2015
• Docket Number: No. 14–cv–0599 WJ/SMV,14–cv–0599 WJ/SMV
• Citation: 149 F.Supp.3d 1312
• Parties: Crystal Amaya, Brad Cates, Brian Moore, and Kim Ronquillo, Plaintiffs, v. Sam Bregman, Michael Corwin, Jamie Estrada, Anissa Galassini–Ford, Jason Loera, and Bruce Wetherbee, Defendants.
• Court: U.S. District Court — District of New Mexico

149 F.Supp.3d 1312

Crystal Amaya, Brad Cates, Brian Moore, and Kim Ronquillo, Plaintiffs,

v.Sam Bregman, Michael Corwin, Jamie Estrada, Anissa Galassini–Ford, Jason Loera, and Bruce Wetherbee, Defendants.¹

No. 14–cv–0599 WJ/SMV

United States District Court, D. New Mexico.

Filed December 16, 2015

Angelo J. Artuso, Patrick Joseph Rogers, Patrick J. Rogers, LLC, Albuquerque, NM, Eric A. Packel, Baker & Hostetler LLP, Philadelphia, PA, Marc David Flink, Baker & Hostetler LLP, Denver, CO, Mark E. Braden, Baker & Hostetler, LLP, Washington, DC, Theodore J. Kobus, III, Baker & Hostetler LLP, New York, NY, for Plaintiff.

Gerald Dixon, James C. Wilkey, Steven S. Scholl, Dixon Scholl & Bailey PA, Carolyn M. Nichols, Brendan K. Egan, Rothstein, Donatelli LLP, Zachary A. Ives, Mary (Molly) E. Schmidt–Nowara, Matthew L. Garcia, Garcia Ives Nowara LLC, Jason Bowles, Bowles Law Firm, Albuquerque, NM, Kristina Martinez, Coberly and Martinez LLC, Jerry Todd Wertheim, Jones, Snead, Wertheim & Wentworth PA, Santa Fe, NM, for Defendant.

Bruce Wetherbee, Santa Fe, NM, pro se.

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT WETHERBEE'S MOTION TO AMEND

WILLIAM P. JOHNSON

, UNITED STATES DISTRICT JUDGE

THIS MATTER is before the Court on Defendant Wetherbee's Motion to Join Additional Parties and Amend Pleadings by Filing of His First Counterclaims of Prima Facie Tort, Conspiracy, Civil RICO, and Conspiracy under Civil RICO [Doc. 181] (“Motion to Amend”), filed on October 7, 2015. Plaintiffs responded on October 26, 2015. [Doc. 207]. On November 10, 2015, proposed new party Darren White also filed a response. [Doc. 222]. Defendant Wetherbee replied on December 7, 2015. [Doc. 273]. Having considered the briefing, record, and relevant law and being otherwise fully advised in the premises, the Court finds that the Motion to Amend is not well-taken and, therefore, is DENIED.

Background

This case is about stolen emails. In mid–2009, a supporter of then gubernatorial candidate Susana Martinez purchased the internet domain name susana2010.com from a domain registrar and web hosting company and then donated the domain name to the Martinez campaign. Plaintiffs Brian Moore and Kim Ronquillo were each assigned an email address under that domain name. Plaintiffs Crystal Amaya and Brad Cates at some point sent emails to individuals with email addresses at that domain.

As Susana Martinez's campaign manager, Defendant Jamie Estrada was provided the credentials for managing the domain. However, Estrada was fired as campaign manager sometime in December 2009. The following November, Susana Martinez won the election and became Governor of the State of New Mexico. After the November election, Plaintiffs continued to send emails to or from the susana2010.com email addresses.

Between July 2011 and June 2012, Defendant Estrada intercepted hundreds of emails sent to addresses at the susana2010.com domain, leaving the senders and recipients unaware that the messages had been intercepted. Defendant Estrada² shared the intercepted emails with the Governor's political opponents, including Defendant Jason Loera, a Democratic consultant working for the Grassroots New Mexico political committee. Plaintiffs claim that Loera in turn provided some or all of the stolen emails to Defendant Wetherbee, who was affiliated with the group Independent Source Political Action Committee (“ISPAC”). Plaintiffs allege that Wetherbee then intentionally disclosed and/or used the emails even though he knew or should have known that they were stolen. [Doc. 22] at 15–17.

Based on those factual allegations, one cause of action remains against Defendant Wetherbee. It is brought pursuant to 18 U.S.C. § 2520(a)

, which provides for recovery of civil damages for anyone whose electronic communications have been “intercepted, disclosed, or intentionally used” in violation of the Federal Wiretap Act, 18 U.S.C. § 2511(1)(c)(d).³

See generally,

Kirch v. Embarq Mgmt. Co., 702 F.3d 1245, 1246–47 (10th Cir.2012) (determining that liability under this section attaches only to those who themselves “intercepted, disclosed, or intentionally used” communications in violation of § 2511 ).

Defendant Wetherbee filed his Answer on April 20, 2015. [Doc. 113]. He denies intercepting the emails or having known they were illegally intercepted. See id. at 14, para. 9. While he admits disclosing at least some of the emails, he claims that such disclosures were not unlawful, for a variety of reasons. See id. at 13–14. Wetherbee now seeks to amend his Answer. [Doc. 181]. He seeks to bring counterclaims against the Plaintiffs, and to bring third-party claims against three other individuals who are not currently parties. Specifically, he wishes to bring claims based on prima facie tort (against Plaintiffs and the third-parties), see [Doc. 181] at 25–28, and civil RICO claims against the third-party defendants, see id. at 25–32.

Wetherbee's proposed amended Answer/counterclaim/third-party complaint would shift the focus of the lawsuit from the stolen emails to alleged corruption in Governor Martinez's administration. Essentially, Wetherbee argues that Plaintiffs (and the proposed new parties) have been in league with each other to abuse their governmental positions and connections to violate the law for their own benefit. Wetherbee believes that Plaintiffs (and the proposed new parties) are pursuing this lawsuit against him in retaliation for his investigation into this alleged corruption. While acknowledging that Plaintiffs' suit against him is “lawful,” he believes that “the only purpose” of their lawsuit is to harm him and his reputation. Id. at 2, 3. He apparently believes that Plaintiffs and the proposed new parties were aware early on that Defendant Estrada had acted alone in stealing the emails. See id. He believes Plaintiffs sued him anyway, despite knowing that (1) the statute of limitations had run, and that (2) his actions were protected by the First Amendment. See id. Based on these perceived flaws, Wetherbee surmises that the suit must really be about something else, i.e., revenge.

In the discussion below, the Court first addresses Wetherbee's motion to add counterclaims and third-party claims based on prima facie tort. The Court finds that Wetherbee cannot state a claim for prima facie tort because the Plaintiffs had sufficient justification to bring the lawsuit against him. Accordingly, amendment would be futile and thus, the Motion to Amend is denied.

Next, the Court addresses the proposed civil RICO claims against the third-party defendants. The Court finds that Wetherbee cannot state a claim for civil RICO violations because (1) he lacks standing to sue under RICO, (2) his allegations fail to establish an “enterprise” under RICO, and (3) his allegations fail to establish “continuity” under RICO.

Standard for Pro Se Pleadings

Wetherbee is proceeding pro se. Accordingly, the Court reviews his “pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys.” Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir.2007)

. However, pro se litigants' “conclusory allegations without supporting factual averments are insufficient to state a claim on which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). The Court may not assume that a pro se litigant can prove facts that have not been alleged, or that a defendant has violated laws in ways that the pro se litigant has not alleged. See

Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983). The Court may not act as an advocate for a pro se litigant. See

Hall, 935 F.2d at 1110.

Standard for Motions to Amend

Courts “should freely give leave [to amend pleadings] when justice so requires,” Fed. R. Civ. P. 15(a)(2)

, but a motion to amend may be denied if amendment would be futile. See

Anderson v. Suiters, 499 F.3d 1228, 1238 (10th Cir.2007). “A proposed amendment is futile if the complaint, as amended, would be subject to dismissal.” See

id. A decision on a request to amend is within the discretion of the Court. See

Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962).

Analysis

I. Wetherbee's proposed claims based on prima facie tort.

Wetherbee seeks to bring counterclaims (against Plaintiffs) and third-party claims (against three non-parties) for prima facie tort and conspiracy to commit prima facie tort. See [Doc. 181] at 25–28. New Mexico recognized prima facie tort as a cause of action in Schmitz v. Smentowski, 109 N.M. 386, 785 P.2d 726 (N.M.1990)

. The elements of the cause of action are:

1. An intentional, lawful act by the defendant;

2. An intent to injure the plaintiff;

3. Injury to the plaintiff; and

4. The absence of justification or insufficient justification for the defendant's acts.

Id.

As mentioned, Wetherbee concedes that the filing of the lawsuit was lawful. [Doc. 181] at 25 (“At all times relevant hereto, Plaintiffs[ ] and third party defendants ... were engaged in intentional lawful acts with the intent to injure Wetherbee and others....”). For purposes of this discussion, and without expressly finding so, the Court will assume that Plaintiffs intended to injure Wetherbee and that he was, in fact, injured. That leaves the fourth element—absence of or insufficient justification for Plaintiffs' acts—and that element is fatal to Wetherbee's motion.

Plaintiffs correctly observe that the “intentional lawful act” of which Wetherbee complains, i.e., the filing of the lawsuit, aligns with the traditional tort of malicious-abuse-of-process. [Doc. 207] at 13. “The elements of a malicious-abuse-of-process action are: (i) the use of process in a judicial proceeding that would be improper in the regular prosecution or defense of a claim or charge; (ii) a primary motive in the use of process to accomplish an illegitimate end; and (iii) damages.” Walker v. THI of N.M. at Hobbs Ctr., 803 F.Supp.2d 1287, 1313 ...